FIFTH SECTION

CASE OF MESESNEL v. SLOVENIA

(Application no. 22163/08)

JUDGMENT

STRASBOURG

28 February 2013

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Mesesnel v. Slovenia,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
	Mark Villiger, President,
	Angelika Nußberger,
	Boštjan M. Zupančič,
	Ann Power-Forde,
	Ganna Yudkivska,
	Helena Jäderblom,
	Aleš Pejchal, judges,
and Claudia Westerdiek, Section Registrar,
Having deliberated in private on 5 February 2013,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 22163/08) against the Republic of Slovenia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Slovenian national, Ms Špela Mesesnel (“the applicant”), on 29 April 2008.
2.  The applicant was represented by Mr D. Đuragić, a lawyer practising in Ljubljana. The Slovenian Government (“the Government”) were represented by their Agent, Mrs T. Mihelič Žitko Attorney.
3.  The applicant alleged that her right to participate effectively in proceedings against her had been violated.
4.   The application was communicated to the Government on 12 October 2011.
THE FACTS
I.  THE CIRCUMSTANCES OF THE CASE
5.  The applicant was born in 1979 and lives in Ljubljana.
6.  On 28 September 2004 at 4.30 a.m., the applicant was pulled over in her car by Police Officer S., who ordered her to undergo a breathalyser test. According to the applicant, despite five attempts, the test was unsuccessful as no result appeared on the screen.
7.  On 14 October 2004 the police charged the applicant with an offence under paragraph 7 of section 120 of the Road Traffic Safety Act, which she had allegedly committed by blowing into the breathalyser insufficiently and thereby disregarding the instructions on the use of the breathalyser. The ensuing proceedings were conducted under the Minor Offences Act 1983, according to which the courts have jurisdiction to decide on charges concerning minor offences.
8.  On 2 February 2005 the applicant was summoned to appear before the Ljubljana Local Court but the summons was returned to the court undelivered. On 12 April 2005 the court sent a new summons, which was served on the applicant on 22 April 2005. However, further to a medical certificate stating that the applicant was on sick leave during the relevant period, the hearing was cancelled. A new summons was served on the applicant on 5 September 2005. Four days later the applicant informed the court that she would be represented by a lawyer, M., in the proceedings. M. requested a postponement of the hearing scheduled for 12 September 2005 in order to consult the file and prepare the defence. His request was granted.
9.  The next hearing of the applicant was scheduled for 3 October 2005 at 8.35 a.m. The court also scheduled an examination of Police Officer S. for the same day at 8 a.m. The summons concerning the applicant’s hearing was served on her representative, but not on the applicant, who failed to collect the letter. Neither the hearing of the applicant nor the examination of S. took place on 3 October 2005.
10.  On 13 September 2005 the court ordered that the applicant be brought before it by force. This order was subsequently cancelled.
11.  On 20 January 2006 the Ljubljana Local Court summoned the applicant to appear before it. The summons was not served on her but left at the post office. As she failed to collect it, the summons was served on her representative on 30 January 2006. The applicant failed to appear before the judge on the scheduled date.
12.  On 9 February 2006 the Ljubljana Local Court judge examined Police Officer S., who testified that on the day in question she had seen the applicant swerving from side to side in her car. After pulling her over, she had smelled alcohol on her breath and noticed that she lacked coordination. The police officer also stated that she believed that the applicant had been so drunk that she had been unable to blow properly into the breathalyser. Moreover, she maintained that she had ordered a medical examination, which the applicant had refused to undergo.
13.  On 17 May 2006 the court ordered that a summons for the applicant to appear before the court be served by a special company, which served the summons on the applicant on 19 May 2006.
14.  On 26 May 2006 the applicant received copies of the records concerning the examination of S. and of the report on the use of the breathalyser.
15.  On 1 June 2006 the applicant was heard by the judge. She stated that she had been returning from holiday on the day in question. After being stopped she had followed the police officer’s instructions concerning the use of the breathalyser. However, every time she had blown into the device, it turned itself off and the police officer had needed to restart it. The applicant disputed the allegation that she had refused to comply with the police officer’s order to blow into the breathalyser, stating that she had in fact blown into it five times unsuccessfully. She further stated that she had declined to sign the police report as the police officer had refused to add her comments concerning the problems with the breathalyser and had instead noted that she had medical problems with her lungs, which was not true. The applicant requested a cross-examination of the police officer.
16.  On the same day the applicant also filed a written statement disputing the police officer’s allegation that she appeared to be drunk and contesting the allegation that the officer had ordered her to undergo a medical examination. The applicant also informed the court that she had changed her representative to lawyer D.
17.  On 4 July 2006 the judge again heard the police officer, who was asked to give her account of the incident of 28 September 2004. She said that she always checked whether the device was working before taking it with her and had done so on the day in question. The officer further stated, inter alia, the following: the applicant had told her that she had been returning from a party; the applicant had not asked for comments to be added to the report; the applicant herself had mentioned that she had medical problems, which had been noted in the report; and the applicant had been so drunk that she had been unable to blow properly into the breathalyser.
18.  On 10 July 2006 the court rendered a decision finding the applicant guilty of an offence under paragraph 7 of section 120 of the Road Traffic Safety Act for blowing into the breathalyser insufficiently and thereby disregarding the instructions for the use of the breathalyser. The court summarised the statements given by the applicant and the police officer and noted that it had obtained an instruction manual for the breathalyser. Finding that the police officer was convincing in her account, which conflicted with the applicant’s, the court concluded that the applicant had committed the aforementioned offence with direct intent. The court rejected the applicant’s request for cross-examination of the police officer on the grounds that (i) the police officer had twice been examined by the court and had given a coherent account of the incident; and (ii) it was likely that the applicant would not attend any cross-examination since she had had to be summoned to her hearing several times. The applicant was fined 100,000 Slovenian tolars (SIT) and her driving licence was permanently confiscated. She was also ordered to pay court expenses of SIT 40,000.
19.  On 20 July 2006 the applicant appealed to the Ljubljana Higher Court. She complained, inter alia, that the lower court had refused to allow a cross-examination of the witness and that the police officer had been examined in the absence of her lawyer and herself.
20.  On 21 September 2006 the Ljubljana Higher Court dismissed the applicant’s appeal but changed the verdict, which now read that the applicant was guilty of refusing to undergo a medical examination. The sentence remained the same. The applicant was also ordered to pay SIT 40,000 in court expenses. The Higher Court found the following:
“It can be seen from the collected evidence that the accused was first ordered to undergo a breathalyser test, which she had performed improperly, referring to an alleged medical problem with her lungs, and that she refused to sign the report, for which reason a medical examination was ordered, which she also refused to undergo. These circumstances are borne out by the bill of indictment, the police report and the testimony of Officer S. who was twice examined in the proceedings and provided a detailed account of the procedure in which the applicant had been involved ... It was not important in the instant case whether or not the accused referred to her medical problems, since the medical examination had to be ordered on the basis of the mere fact that the accused refused to sign the report. The officer therefore knew her duty and ordered the medical examination, as can be seen from her testimony and the report ...”
21.  The Higher Court further noted that the police officer had been examined by the judge before the applicant had made her request for cross-examination and that it had been obvious from S.’s first examination that she had ordered the medical examination. In the Higher Court’s view, the second examination of the officer was of no significance and the applicant’s defence rights had therefore not been violated.
22.  On 8 November 2006 the applicant lodged a constitutional appeal in which she complained, inter alia, that her request to cross-examine the witness, the police officer, had been ignored and that a hearing at which the witness had been heard had been held in her absence and that of her lawyer, who had never been informed of it. The credibility of a witness could be tested only through cross-examination. The applicant also requested that the impugned decisions be suspended pending the ruling of the Constitutional Court. The request was rejected on 20 November 2006.
23.  On 12 November 2006 the applicant also requested that the Supreme Public Prosecutor’s Office lodge a request for protection of legality. The request was refused on 3 January 2007.
24.  On 20 December 2007 the Constitutional Court dismissed the applicant’s constitutional appeal. The decision was served on the applicant on 11 January 2008.
II. RELEVANT DOMESTIC LAW
25.  Section 120 of the Road Traffic Safety Act (Zakon o varnosti cestnega prometa, Official Gazette no. 30/1998 – in force until 1 January 2005) read, in so far as relevant, as follows:
“(3)  A driver who has been ordered by police to undergo a test by use of special devices or medical examination shall comply with the order. If he or she refuses to undergo the test or fails to comply with instructions concerning the use of the method in question, the officer shall note this in a report, prohibit further driving and withdraw the [offender’s] driving licence. The driver can refuse to undergo the test [by use of special devices] on medical grounds only, in which case the officer shall order a medical examination.
...
(7)  A driver who acts in breach of the third or fifth paragraph of this section shall be punished with a fine of no less than SIT 90,000 or imprisonment. In addition to the fine or imprisonment, the [offender’s] driving licence ... shall also be withdrawn regardless of the number of penalty points collected so far.”
26.  Under the Minor Offences Act 1983 (hereinafter referred to as “the 1983 MOA”) the proceedings were conducted by a Minor Offence Judge on the basis of a bill of indictment lodged by the police. The Act stipulated that the accused must be heard before a decision was given. The hearing of the accused should in principle be oral, but the accused should first be informed that he was not obliged to defend himself or answer any questions (sections 59 and 113). Section 116 provided that the accused could be confronted with a witness if their statements did not match. Section 122 provided that witnesses could be examined by the judge if this was considered necessary for the establishment of the facts.
THE LAW
I.  ALLEGED VIOLATION OF ARTICLE 6 §§ 1 and 3 (d) OF THE CONVENTION
27.  The applicant complained of a violation of her right to a fair and adversarial trial on account of her inability to participate in the examination of the only witness in her case. She invoked Article 6 § 1 and § 3 (c) of the Convention. However, the Court finds it appropriate to examine the case under Article 6 § 1 and § 3 (d) (see Guerra and Others v. Italy, 19 February 1998, § 44, Reports of Judgments and Decisions 1998‑I). The relevant part of the aforementioned Article reads as follows:
“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...
...
3.  Everyone charged with a criminal offence has the following minimum rights:
...
(d)  to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
....”
A.  Admissibility
28.  The Court notes that it is not in dispute between the parties that the criminal limb of Article 6 was applicable to the proceedings complained of by the applicant, and sees no reason to disagree (see Öztürk v. Germany, 21 February 1984, §§ 46-56, Series A no. 73; Falk v. the Netherlands (dec.), no. 66273/01, ECHR 2004-XI; and Ziliberberg v. Moldova, no. 61821/00, §§ 30-36, 1 February 2005). It further notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, and that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B.  Merits
1.  The parties’ submissions
29.  The applicant alleged that there had been an obvious dispute over facts between her and Police Officer S. However, neither she nor her lawyer had been informed of the fact that S., who was a decisive witness, would be examined in the proceedings. They had had no opportunity to comment on S.’s second oral submission, nor to cross-examine her. As regards the latter complaint, the judge had arbitrarily rejected the applicant’s proposal for cross-examination by reference to the likelihood that she would not appear, ignoring the fact that she was the one who had made the request and that she was represented by a lawyer.
30.  The applicant maintained that the evidence should have been produced and examined at an adversarial hearing, where she could have questioned the witness. The applicant also emphasized that the penalty imposed, namely the confiscation of her driving licence, had seriously affected her life.
31.  The Government argued that the applicant had not in fact been interested in actively participating in the proceedings but sought to delay them until they became statute barred, two years after the commission of the offence. She had avoided being heard by the judge, despite this being her right. The Government further argued that, in her oral and written submissions of 1 June 2006, the applicant had had an opportunity to reply to the charges as well as to S.’s statements of 9 February 2006. They submitted that the 1983 MOA had not provided for an absolute right of the accused to be confronted with the witness, but this possibility had been at the discretion of the judge. In the instant case the judge found that there was no need for cross-examination, since this would have provided no new information.
32.  The Government maintained that the Higher Court had relied on the fact that the applicant had refused to sign the report, which she had confirmed in her statements of 1 June 2006. Furthermore, in view of the Higher Court’s findings the first oral testimony of S. was the only relevant evidence. The second testimony of S. had concerned predominantly objective facts, which were irrelevant to the final ruling in the case.
33.  Lastly, the Government argued that the proceedings had not concerned a real criminal offence but a traffic offence, which should affect the nature of the guarantees.
2.  The Court’s assessment
34.  The Court reiterates that the guarantees in paragraphs 3 (c) and (d) of Article 6 are specific aspects of the right to a fair hearing set forth in paragraph 1 of this provision, which must be taken into account in any assessment of the fairness of proceedings. In addition, the Court’s primary concern under Article 6 § 1 is to evaluate the overall fairness of the criminal proceedings (see Taxquet v. Belgium [GC], no. 926/05, § 84, 16 November 2010, with further references therein). In making this assessment the Court will look at the proceedings as a whole, having regard to the rights of the defence but also to the interests of the public and, where necessary, to the rights of witnesses (see, among many authorities, Al-Khawaja and Tahery v. the United Kingdom ([GC], nos. 26766/05 and 22228/06, § 118, ECHR 2011).
35.  The Court further reiterates that Article 6 § 3 (d) enshrines the principle that, before an accused can be convicted, all evidence against him must normally be produced in his presence at a public hearing with a view to adversarial argument. Exceptions to this principle are possible but must not infringe the rights of the defence, which, as a rule, require that the accused should be given an adequate and proper opportunity to challenge and question a witness against him, either when that witness makes his statement or at a later stage of proceedings (see Lucà v. Italy, no. 33354/96, § 39, ECHR 2001‑II, and Solakov v. “the former Yugoslav Republic of Macedonia”, no. 47023/99, § 57, ECHR 2001‑X). As regards the exceptions, the Court, in Al-Khawaja and Tahery (cited above), referred to two requirements. First, there must be a good reason why the witnesses could not be examined by the accused and second, when a conviction is based solely or to a decisive degree on depositions that have been made by a person whom the accused has had no opportunity to examine or to have examined, sufficient counterbalancing factors, including the existence of strong procedural safeguards, must be provided (see Al-Khawaja and Tahery, cited above, §§ 119-47).
36.  As to the present case, the Court notes that the statements of Police Officer S. were the only and therefore decisive evidence of the acts alleged against the applicant. In particular, the conviction of the applicant was first based on S.’s assertion that the applicant had refused to blow into the breathalyser and later, after the appeal, on her assertion that she had ordered the applicant to undergo a medical examination but the applicant had refused to comply with that order (see paragraphs 18 and 20 above).
37.  The Court further notes that S. was twice examined as a witness by the first-instance judge. It has not been disputed that neither the applicant nor her counsel was informed of and invited to attend the witness examination.
38.  It would seem that the domestic courts’ opinion that the applicant’s presence at S.’s first examination had not been necessary was based on the fact that she had made no prior request to that effect (see paragraph 21 above). However, there appears to be no indication in the 1983 MOA that such a request should have been made by the accused, nor that he or she needed to be informed about the court’s intention to call a certain witness. Moreover, as can be seen in the applicant’s case with respect to the hearing scheduled for 3 October 2005 (see paragraph 9 above), the examination of a witness could be scheduled prior to the hearing of the accused. The Court therefore finds that the applicant could not be blamed for failing to attend the first examination of the witness.
39.  The Court notes moreover that, despite making an explicit request at her oral hearing, the applicant was not informed of the second examination of the witness. The domestic courts justified the holding of the second examination in the absence of the applicant by referring to S.’s coherent account of the incident, difficulties in summoning the applicant to her oral hearing and lack of significance of the evidence given by S. during the second examination (see paragraphs 18 and 21 above). While it is true that service of the summons concerning the applicant’s hearing was repeatedly unsuccessful and that the applicant, even after being properly summoned, at first failed to appear before the court, this does not seem to be particularly relevant to the question of her presence at the examination of S. In this connection, the Court notes that the legal provisions of the 1983 MOA did not provide for an adversarial hearing but only for an oral hearing or questioning of the accused. As the Court has noted above, examination of witnesses appeared to be a separate procedural act, to which the accused was not automatically invited (see paragraphs 26 and 38 above). As regards the remaining grounds relied on by the domestic courts, the Court finds them equally unpersuasive. It notes that the local court must have been aware that the applicant, who challenged factual aspects of her case, had been unable to test the only witness and to cast doubts on her credibility during the first examination. Having regard to the nature of the issues decided in the impugned proceedings, which does not disclose any exceptional circumstances, the local court should have ensured that the applicant had an opportunity to question S. at least at her second examination, even more so since she had contested the account given by S. and had made an explicit request to cross-examine her.
40.  In view of the foregoing, the Court finds that no good reason has been shown for the failure to allow the applicant an opportunity to examine the only witness in her case (see Khawaja and Tahery, cited above, §120 and reference therein). This is sufficient to conclude that there has been a violation of Article 6 §§ 1 and 3 (d) of the Convention.
II.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
41.  Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A.  Damage
42.  The applicant claimed EUR 20,000 in respect of pecuniary and non-pecuniary damage.
43.  The Government argued that there was no causal link between the violation found and the pecuniary damage alleged and that the claim in so far as it related to non-pecuniary damage was unsubstantiated.
44.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. In respect of non-pecuniary damage, the Court considers that the finding of a violation is, in itself, sufficient just satisfaction for the purposes of Article 41 of the Convention.
B.  Costs and expenses
45.  The applicant also claimed EUR 3,000 for the costs and expenses incurred before the Court, which included EUR 2,000 for the preparation of the application and EUR 1,000 for the preparation of the written observations.
46.  The Government argued that the claim was unsubstantiated.
47.  According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. The Court notes that in the present case the applicant did not explain her claim and submit supporting documents or detailed information showing that the costs claimed had been actually and necessarily incurred (see S.I. v. Slovenia, no. 45082/05, § 87, 13 October 2011). The Court therefore rejects this claim.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1.  Declares the application admissible;

2.  Holds that there has been a violation of Article 6 §§ 1 and 3 (d) of the Convention;

3.  Holds, as regards non-pecuniary damage, that the finding of a violation of Article 6 §§ 1 and 3 (d) constitutes, in itself, sufficient just satisfaction for the purposes of Article 41 of the Convention;

4.  Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 28 February 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Claudia Westerdiek	Mark Villiger
	Registrar	President